PART 1 OF 3 (Justice Kennedy, Opinion of the Court)Justice Kennedy, Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
LAKHDAR BOUMEDIENE, et al., PETITIONERS
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.
KHALED A. F. AL ODAH, next friend of FAWZIKHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS
UNITED STATES et al.
on writs of certiorari to the united states court of appeals for the district of columbia circuit
[June 12, 2008]
Justice Kennedy delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit.
Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.
Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. V), the President is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id., at 518 (plurality opinion of O’Connor, J.), id., at 588–589 (Thomas, J., dissenting). After Hamdi, the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were “enemy combatants,” as the Department defines that term. See App. to Pet. for Cert. in No. 06–1195, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06–1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in Hamdi. See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.
The first actions commenced in February 2002. The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush, 215 F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United States, 321 F. 3d 1134, 1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitutional issue presented in the instant cases was not reached in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and entertained in two separate proceedings. In the first set of cases, Judge Richard J. Leon granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (DC 2005).
While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of §1005 of the DTA amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to hear or consider … an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review decisions of the CSRTs. Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006), the Court held this provision did not apply to cases (like petitioners’) pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. A. §948a et seq. (Supp. 2007), which again amended §2241. The text of the statutory amendment is discussed below. See Part II, infra. (Four Members of the Hamdan majority noted that “[n]othing prevent[ed] the President from returning to Congress to seek the authority he believes necessary.” 548 U. S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred was the authority to “create military commissions of the kind at issue” in the case. Ibid. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.)
Petitioners’ cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981 (CADC 2007), is the subject of our present review and today’s decision.
The Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id., at 990–991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
As a threshold matter, we must decide whether MCA §7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Section 7(b) of the MCA provides the effective date for the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.
There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases “which relate to … detention.” See Black’s Law Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a] writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, 8 Wall. 85, 102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to “a writ of habeas corpus.” The next paragraph, §2241(e)(2), refers to “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who … [has] been properly detained as an enemy combatant or is awaiting such determination.” There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA §7(b), it is said, refers only to the second class of cases, for it largely repeats the language of §2241(e)(2) by referring to “cases … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States.”
Petitioners’ textual argument would have more force were it not for the phrase “other action” in §2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, §2241(e)(1), which explicitly mentions the term “writ of habeas corpus.” The structure of the two paragraphs implies that habeas actions are a type of action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained … as an enemy combatant.” Pending habeas actions, then, are in the category of cases subject to the statute’s jurisdictional bar.
We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner’s Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575 (Congress should “not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 206 (1991) ; H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1209–1210 (W. Eskridge & P. Frickey eds. 1994). If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case.
If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan’s holding that the DTA’s jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see 476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us.
In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.
We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases.
The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.
Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Id., at 108–125. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An Introduction to English Legal History 38–39 (4th ed. 2002). Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3/papers.cfm? ... id=1008252
(all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King’s prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Constitution of the United States §1341, p. 237 (3d ed. 1858) (noting that the writ ran “into all parts of the king’s dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king”). And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it. See Collings, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting that by this point the writ was “the appropriate process for checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. Ibid. The court held this was a sufficient answer and justified the subjects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which condemned executive “imprison[ment] without any cause” shown, and declared that “no freeman in any such manner as is before mentioned [shall] be imprisoned or detained.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny”); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers”). Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., INS v. Chadha, 462 U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he non-suspension clause is the original Constitution’s most explicit reference to remedies”). The word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8.)
Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an “exception” to the “power given to Congress to regulate courts.” See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (hereinafter Elliot’s Debates). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot’s Debates 328 (noting the convention’s understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus”). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone … are well worthy of recital: ‘To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the British Constitution.’” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended the privilege of habeas corpus for any person suspected of “communicating with the enemy.” See King v. Halliday,  A. C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”); cf. In re Jackson, 15 Mich. 417, 439–440 (1867) (Cooley, J., concurring) (“The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.
The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases have examined historical sources to construct a view of the common-law writ as it existed in 1789—as have amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Respondents 27. Petitioners argue that jurisdiction followed the King’s officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.
We know that at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief. See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82 (1772) (ordering an African slave freed upon finding the custodian’s return insufficient); see generally Khera v. Secretary of State for the Home Dept.,  A. C. 74, 111 (“Habeas corpus protection is often expressed as limited to ‘British subjects.’ Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question”). We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England—“entertained” at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep. 816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts denied relief to the petitioners. Whether the holdings in these cases were jurisdictional or based upon the courts’ ruling that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish Sailors, supra, at 1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97 Eng. Rep., at 552. In Du Castro’s Case, the court granted relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in England. See Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of declared wars with other nation states. Judicial intervention might have complicated the military’s ability to negotiate exchange of prisoners with the enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10 Journals of the Continental Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing General Washington not to exchange prisoners with the British unless the enemy agreed to exempt citizens from capture).
We find the evidence as to the geographic scope of the writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the writ did run: the so-called “exempt jurisdictions,” like the Channel Islands; and (in former times) India. There are critical differences between these places and Guantanamo, however.
As the Court noted in Rasul, 542 U. S., at 481–482, and nn. 11–12, common-law courts granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these areas, while not in theory part of the realm of England, were nonetheless under the Crown’s control. See 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, pp. 232–233 (reprint 1989). And there is some indication that these jurisdictions were considered sovereign territory. King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the “sovereign jurisdiction” and “subjection of the Crown of England”). Because the United States does not maintain formal sovereignty over Guantanamo Bay, see Part IV, infra, the naval station there and the exempt jurisdictions discussed in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in which British courts in India granted writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor retained formal sovereignty and control. See supra, at 12–13; Brief for Legal Historians as Amici Curiae 12–13.The analogy to the present cases breaks down, however, because of the geographic location of the courts in the Indian example. The Supreme Court of Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The Supreme Court of Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it had the power to issue the writ in nonsovereign territory does not prove that common-law courts sitting in England had the same power. If petitioners were to have the better of the argument on this point, we would need some demonstration of a consistent practice of common-law courts sitting in England and entertaining petitions brought by alien prisoners detained abroad. We find little support for this conclusion.
The Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the “power” to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as “foreign.” Ibid. But what matters for our purposes is why common-law courts lacked this power. Given the English Crown’s delicate and complicated relationships with Scotland and Hanover in the 1700’s, we cannot disregard the possibility that the common-law courts’ refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the view of Lord Mansfield in Cowle that “[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in Council” (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland was no longer a “foreign” country vis-a-vis England—at least not in the sense in which Cuba is a foreign country vis-a-vis the United States.
Scotland remained “foreign” in Lord Mansfield’s day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that “ ‘prudential concerns’ … such as comity and the orderly administration of criminal justice” affect the appropriate exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the writ to Canada, notwithstanding the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson, 3 El. and El. 487 (1861)). This might be seen as evidence that the existence of a separate court system was no barrier to the running of the common-law writ. The Canada of the 1800’s, however, was in many respects more analogous to the exempt jurisdictions or to Ireland, where the writ ran, than to Scotland or Hanover in the 1700’s, where it did not. Unlike Scotland and Hanover, Canada followed English law. See B. Laskin, The British Tradition in Canadian Law 50–51 (1969).
In the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when Lord Mansfield considered issuance of the writ outside England. In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major difference between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union) but it did apply in Ireland. Blackstone put it as follows: “[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14–15 (noting that most reports of 18th-century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon evidence that is “too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution”).
Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United States. See DTA §1005(g), 119 Stat. 2743. And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 471. Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (arguing that Guantanamo is territory “outside the United States”). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) (“[D]etermination of sovereignty over an area is for the legislative and executive departments”); see also Jones v. United States, 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982).
We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, “‘[s]overeignty’ is a term used in many senses and is much abused. ” See 1 Restatement (Third) of Foreign Relations Law of the United States §206, Comment b, p. 94 (1986). When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, see Webster’s New International Dictionary 2406 (2d ed. 1934) (“sovereignty,” definition 3), but sovereignty in the narrow, legal sense of the term, meaning a claim of right, see 1 Restatement (Third) of Foreign Relations, supra, §206, Comment b, at 94 (noting that sovereignty “implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there”). Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War. See, e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that the port of Tampico, conquered by the United States during the war with Mexico, was “undoubtedly … subject to the sovereignty and dominion of the United States,” but that it “does not follow that it was a part of the United States, or that it ceased to be a foreign country”); King v. Earl of Crewe ex parte Sekgome,  2 K. B. 576, 603–604 (C. A.) (opinion of Williams, L. J.) (arguing that the Bechuanaland Protectorate in South Africa was “under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion”). Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. See 542 U.S., at 480; id., at 487 (Kennedy, J., concurring in judgment).
Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles.